Raseena and Hanna Fathima (Minor) Represented by Mother v. The Branch Manager, United India Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 22[ND] DAY OF MARCH 2023 / 1ST CHAITHRA, 1945 ``` ``` MACA NO. 291 OF 2023 ``` ``` AGAINST THE AWARD IN OPMV 1931/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM ``` ## `APPELLANTS/CLAIMANTS:` ``` 1RASEENA AGED 43 YEARS D/O ABIDA, INCHAYIL VEEDU, MUTTAKKAVU, NEDUMPANA VILLAGE, KOLLAM-, PIN - 691576 2HANNA FATHIMA (MINOR) AGED 11 YEARS D/O RASEENA, INCHAYIL VEEDU, MUTTAKKAVU, NEDUMPANA VILLAGE, KOLLAM- (REPRESENTED BY HER MOTHER, 1ST APPELLANT), PIN – 691576 BY ADVS. K.SIJU ANJANA KANNATH ``` ## `RESPONDENT/3RD RESPONDENT:` ``` THE BRANCH MANAGER M/S UNITED INDIA INSURANCE CO.LTD., G.K COMPLEX, NH ROAD, CHATHANOOR, KOLLAM-, PIN – 691572 ``` ``` BY ADV DEEPA GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 291 OF 2023 ``` ``` 2 ``` ## `JUDGMENT` ``` On 13.07.2016, while the claimant - who was ``` ``` a minor - was walking through a main road, he was hit by the offending car, driven in a rash and negligent manner. He suffered very serious injuries, leading to 13% permanent disability being found in his favour and had to endure long periodsoftreatment.Hethusfiled ``` ``` OP(MV)No.1931/2016 before the Motor Accidents Claims Tribunal, Kollam {“Tribunal” for short), seeking compensation of an amount of ``` ``` Rs.2,50,000/-, and which has been allowed to a ``` ``` sum of Rs.2,97,000/-. The appellant still ``` ``` impugns the Award as being inadequate, relying upon the fact that, inMaster Mallikarjun v. Divisional Manager, the National Insurance Company Limited and Another [(2014) 14 SCC 396], ``` ``` MACA NO. 291 OF 2023 ``` ``` 3 ``` ``` theHon’ble Supreme Court has postulated that the compensation for permanent disability in the case of a child who had suffered 13% disability must be a minimum of Rs.3,00,000/-. ``` ``` 2.Smt.Gopika.T.G – learned counsel for the appellant, argued that the evidence on record fully establishes the cause of the accident as being the negligence of the driver of the offending vehicle; as also the injuries ``` ``` sustained by her client, which are extremely serious and it forced her client to be under treatment for 20 days. She submitted that, ``` ``` therefore, the compensation under the heads ``` ``` “Extra Nourishment” and “Bystander’s Expenses” ``` ``` also deserves to be enhanced substantially. ``` ``` 3.Smt.Deepa George – learned Standing Counsel for the Insurance Company, on the other ``` ``` MACA NO. 291 OF 2023 ``` ``` 4 ``` ``` hand, submitted that the learned Tribunal, in fact, adopted the notional income of the appellant to be Rs.5,000/- per month, which is grossly excessive and impermissible, going by the various judgments of this Court and that of the Hon’ble Supreme Court. She, therefore, prayed that this appeal be dismissed. ``` ``` 4.I have examined the afore rival ``` ``` contentions of the parties and have tested them ``` ``` on the worth of the evidence on record – copies of which have been made available to this Court ``` ``` by the learned counsel for the parties across the Bar, with the express consent that they can be acted upon, without dispute. ``` ``` 5.I do not propose to dwell into the ``` ``` question as to whether the notional income ``` ``` adopted by the learned Tribunal in favour of the ``` ``` MACA NO. 291 OF 2023 ``` ``` 5 ``` ``` appellant is adequate or otherwise. This is ``` ``` because, as rightly argued by Smt.Gopika.T.G, in Master Mallikarjun(Supra), the Hon’ble Supreme Court has declared it affirmatively that, in the case of a child who has suffered 13% disability, ``` ``` the minimum amount to be awarded under the head ``` ``` “Disability” is Rs.3,00,000/-. I see no reason ``` ``` to deny this to the appellant; though I am fully ``` ``` aware that, while doing so, the compensation ``` ``` awarded under the heads “Pain ad Suffering” and ``` ``` “Loss of Amenities” will have to be deleted. ``` ``` But, this would be without any prejudice to the ``` ``` appellant, because, even adopting the same, the ``` ``` total figure would come to Rs.2,37,000/-, as has ``` ``` been awarded, which is lesser than what is ``` ``` stipulated in Master Mallikarjun (Supra). ``` ``` 6.That said, I notice that the learned ``` ``` MACA NO. 291 OF 2023 ``` ``` 6 ``` ``` Tribunal has adopted Rs.250/- and Rs.400/- respectively per day for awarding compensation under the heads “Extra Nourishment” and Bystander’s Expenses”. I am of the view that, since the accident occurred in the year 2016, ``` ``` the figures must be slightly enhanced, which I propose to be Rs.300/- and 500/- respectively. ``` ``` Resultantly, this appeal is partly allowed ``` ``` in the following manner: ``` ``` a)The compensation awarded by the learned Tribunal under the heads “Pain and Suffering”, ``` ``` “Permanent Disability” and “Loss of Amenities” is deleted; and in its place, an amount of Rs.3,00,000/- is awarded as perMaster Mallikarjun (Supra). ``` ``` b)The compensation under the head “Extra Nourishment” is enhanced to Rs.6,000/-, from ``` ``` MACA NO. 291 OF 2023 ``` ``` 7 ``` ``` Rs.5,000/- now awarded by the learned Tribunal, reckoning Rs.300/- per day as expenses for such purpose. ``` ``` c)The compensation under the Bystander’s ``` ``` Expenses” is enhanced to Rs.10,000/-, from ``` ``` Rs.8,000/- awarded by the learned Tribunal, reckoning the per day expense of Rs.500/- for such purpose. ``` ``` d)In all other heads, the compensation ``` ``` awarded by the Tribunal and its findings will remain unaltered. ``` ``` Consequently, the appellant will be entitled ``` ``` to recover the compensation, as enhanced by this ``` ``` Court, from the respondent – Insurance Company, along with interest on the amounts enhanced, at the rate of 7.5% from the date of filing of the claim until it is realised. ``` ``` MACA NO. 291 OF 2023 ``` ``` 8 ``` ``` However, while calculating the interest on the enhanced amounts, the period of 241 days - being the delay caused by the appellant in ``` ``` filing this appeal - shall stand excluded. ``` ``` The appellant will also be entitled to ``` ``` proportionate costs as ordered by the Tribunal. ``` ``` In view of the afore, the amount as fixed ``` ``` above shall be deposited by the Insurance ``` ``` Company before the learned Tribunal, within a ``` ``` period of two months from the date of receipt of a copy of this judgment. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` SAS